On certification to the Superior Court, Appellate Division.
For affirmance as modified -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.
The central issue here is whether using force or inflicting bodily injury on a police officer investigating a burglary constitutes the assault "upon another" that elevates theft to robbery under N.J.S.A. 2C:15-1. We hold that it does and affirm the judgment below in that respect but modify it with respect to merger of one count of the indictment.
On February 11, 1980, a returning homeowner noticed her front door open and its molding torn off. Before entering, she called the police from a nearby store. A responding patrolman cautioned her to remain outside while he entered the home alone with his revolver drawn.
The police officer and the defendant, Mirault, soon confronted each other. Although their versions differ, it is clear that a violent struggle followed. The jury heard the officer describe how, after he shouted "freeze," the defendant leaped at him and grabbed his revolver as the two fell to the ground. The defendant claimed that he feared the officer would use the gun on him. The officer said that he deliberately discharged the gun to empty its chambers and that the defendant threatened to kill him. The struggle continued for several minutes from room to room before backup police arrived and subdued the defendant. In its course the patrolman suffered a dislocated shoulder, torn trigger finger, and abrasions. The police found stolen property on the defendant's person and in a briefcase. Defendant was indicted in this incident for burglary, N.J.S.A. 2C:18-2; robbery, N.J.S.A. 2C:15-1; attempted murder of the officer, N.J.S.A. 2C:5-1; and aggravated assault on the officer, N.J.S.A. 2C:12-1 b(1).
Defendant pleaded not guilty to all charges. At trial, the judge granted defendant's motion to dismiss the attempted murder charge before submitting the case to the jury, which rendered a guilty verdict on all remaining charges. The court vacated the jury's verdict on the count of burglary in the second
degree and substituted burglary in the third degree.*fn1 On these charges the court sentenced the defendant to concurrent terms of 18 years for the robbery, 4 years for the burglary, and 7 years for the aggravated assault, with a minimum term before parole eligibility of 7 years on the robbery count.*fn2
In an unreported opinion, the Appellate Division affirmed. We granted certification. 91 N.J. 216 (1982).
The New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, elevates theft to robbery if a person inflicts bodily injury upon another or threatens another in the course of committing a theft, which includes the immediate flight after its commission. N.J.S.A. 2C:15-1 a. The robbery statute as enacted read:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or ...